On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA. Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA. Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

Sergeant Hutchins has been arraigned, trial is set for August, and the military judge denied Hutchins’ motion for him to recuse himself, according to this NBC San Diego story from Thursday that includes the following:

Hutchins claims that the judge and the defense attorney appointed for him cannot fairly participate in his case because they are unduly influenced by the Secretary of the Navy, who has publicly commented about Hutchins’ guilt.

In an interview after today’s hearing, Hutchins told reporters that any judge or defense attorney appointed by the Defense Service Organization is compromised because “they don’t want to go against the Secretary of the Navy.”

The judge, Col. Daniel Daugherty, asked prosecutors to tell to him how they plan to prove their theory of the case against Joshua Tate of Nashville, Tenn., who has been charged with aggravated sexual assault and lying to investigators. Prosecutors will respond in writing by the end of the week. Daugherty suggested he would then rule at some point next week on a motion by Tate’s lawyers that he dismiss the case for lack of evidence.

Various media outlets are closing in on command investigations addressing some of the circumstances surrounding Staff Sergeant Bales’ massacre of 16 Afghan civilians (for which he was sentenced to confinement for life without the possibility of parole after pleading guilty):

After Bales’ court-martial, The News Tribune and KUOW submitted FOIA requests to the Army seeking what is known as a command climate investigation. The Army carried out that inquiry to assess whether senior soldiers around Bales could have prevented the crimes.

Wright faced an Article 32 last year to determine if there was enough evidence to proceed to court martial. But Third Air Force commander Lt. Gen. Craig Franklin elected in August to drop the charges, while refusing the alleged victim’s request to meet with him.

The unusual do-over that began Tuesday at Joint Base Andrews was ordered by top Air Force officials concerned with decision-making by Franklin. The general, who announced he would retire last week, became a lightning rod for criticism of the military’s handling of sex crimes after he overturned the sexual assault conviction of a fighter pilot last February.

His decision was a key rallying point for legislators, victim’s advocates and others who want to change the Uniform Code of Military Justice to strip military commanders of control over prosecutions. The Pentagon and the service branches, however, have argued such a move would hurt military order and discipline.

Outside the hearing this week, the accuser’s special victims counsel — an Air Force attorney who works specifically for the victim’s interests, rather than for the prosecution or defense — said the previous Article 32 was biased against the woman, and featured badgering questioning from the investigating officer.

According to this San Diego Union-Tribune story dated today, Sgt Hutchins – whose murder conviction was reversed in United States v. Hutchins, No. 12-0408/MC (C.A.A.F. 2013) (CAAFlog case page), and whose retrial was last mentioned by Mike in this post – wants new detailed defense counsel based on the fact that the appellate military judge who disagreed with him at the NMCCA is now the Chief Defense Counsel of the Marine Corps

The potential conflict originates from public comments made in November 2009 by Navy Secretary Ray Mabus, comments that Hutchins unsuccessfully argued had tainted his appeals process. The judge who ruled against Hutchins on that issue on a Navy-Marine Corps Court of Criminal Appeals panel, Col. Joseph Perlak, is now chief defense counsel of the Marine Corps.

Hutchins asked that Navy Capt. Paul LeBlanc, who oversaw the reversal last year by the military’s highest appeals court of Hutchins’ convictions, serve as acting chief defense counsel for the retrial. He also requested a new military judge, telling Col. Michael Richardson “I object to you or anyone else who falls under the Secretary of the Navy being my military judge.”

Mabus, who is traveling overseas, has previously declined to comment on allegations by Hutchins of unlawful command influence.

Richardson declined to recuse himself from Wednesday’s hearing at Camp Pendleton and said he doubted there were grounds to disqualify him as judge for the court martial. But he granted the request to delay arraignment until Feb. 13, giving the Marine defense chain of command time to evaluate whether a conflict of interest exists and, if needed, assign new counsel.

“I’m not going to go further until we ensure there is an attorney sitting next to you fully capable of representing you,” Richardson said.

Capt. Eric Skoczenski told the military judge that he agreed with Hutchins that he should be removed as defense counsel, because of a “potential and inevitable conflict of interest” arising from his chain of command.

The government objected, with Marine Capt. Peter McNeilly saying “there is no conflict in our eyes. … The allegations against Col. Perlak we believe are spurious.”

The use of the hard word “spurious” threw me for a bit, as there is plenty of support for the motion for a new defense counsel (and the detailed counsel’s agreement that there is a conflict is likely dispositive). But the word appears to be in response to the following Defense claim (found on the second page of the article):

In a motion filed late Tuesday to suspend the proceedings until he could be assigned a “conflict-free judge advocate,” Hutchins signaled that his defense at court martial would include litigating the issue of possible unlawful command influence because of Mabus’ public comments. “One aspect of this litigation will include developing evidence that Col Perlak’s decision … was tainted by both actual and apparent unlawful command influence,” it says.

Though, that doesn’t actually provide any more support for the use of “spurious,” considering the independence of the CCA was challenged in Hutchins’ brief to CAAF (as discussed in my argument preview).

No. 12-0408/MC. U.S. v. Lawrence G. HUTCHINS III. CCA 200800393. On consideration of Appellee’s petition for reconsideration of this Court’s decision, and Appellant’s motion to issue the mandate of the Court forthwith, it is ordered that Appellee’s petition for reconsideration be, and the same is, hereby denied, and Appellant’s motion to issue the mandate of the Court forthwith be, and the same is, hereby granted.

In summary, the Supreme Court has consistently held that Edwards and its progeny are intended to apply a clear, bright-line prophylactic rule “to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” Minnick, 498 U.S. at 150. In this case, not only was Edwards not violated, but there is no evidence of badgering, coercion, or any other improper influence upon Appellant by the police or other Government representatives. On the contrary, Appellant clearly demonstrated a desire to “tell his side of the story,” and persisted in this desire after sleeping on his decision overnight. (J.A. 128.) This reinitation was voluntary, and his subsequent waiver of his right to counsel was knowing and intelligent. This Court should therefore reconsider its application of Edwards, assess the facts and circumstances surrounding Appellant’s subsequent waiver, and affirm the decision of the Court below.

Appellant’s response is, in a word, blunt:

The Government’s Petition for Reconsideration, in direct contradiction to Buber and Rule 32, simply restates arguments already presented and rejected by this Court. Indeed, Petitioner fails to even make a prima facie claim that it is offering new argument, and never specifically alleges that this Court “misapprehended” or “overlooked” facts or law. C.A.A.F. R. 32. This Court should therefore summarily dismiss the petition for non-compliance with Rules 31 and 32.

CAAF decided United States v. Hutchins, No. 12-0408/MC, 72 M.J. 294 (CAAFlog case page) (link to slip op.), on June 26, 2013, finding that the Naval Criminal Investigative Service (NCIS) unlawfully reinitiated communications with Appellant after he requested an attorney, leading to a confession that was erroneously admitted at trial, and that the error was not harmless beyond a reasonable doubt. CAAF reverses the trial military judge’s ruling admitting the confession and the Navy-Marine Corps CCA, and sets aside the findings and sentence. The court does not reach the second issue, which questioned whether the Secretary of the Navy’s post-trial remarks constitute unlawful command influence.

Judge Erdmann writes for the court, joined by Judge Stucky and Senior Judge Effron. Judge Ryan writes separately, concurring in the result and also addressing the Secretary’s comments and finding that they resulted in the appearance of unlawful command influence. Chief Judge Baker dissents, finding no error in the admission of Appellant’s confession because he initiated the communication with NCIS, and finding that Appellant failed to meet his burden to show “some evidence” of unlawful command influence.

Appellant, Sergeant Hutchins, U.S. Marine Corps, was tried in 2007 by a general court-martial composed of members with enlisted representation, and convicted contrary to his pleas of conspiracy, false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ. Appellant’s conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The Convening Authority disapproved the reprimand and all confinement in excess of 11 years.

This case was at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA (Hutchins I) that set-aside the findings after the CCA determined that Appellant’s detailed defense counsel was improperly released from the representation upon his end of active service. The CCA’s opinion resulted in Appellant’s brief release from confinement. After CAAF’s ruling reversing the CCA (Hutchins II), Appellant was returned to the brig, and the case was returned to the CCA for further consideration. On remand, the NMCCA affirmed the findings and sentence (Hutchins III). CAAF then granted review of two issues, both of which were considered by the NMCCA in Hutchins III:

I. Whether the findings and sentence must be dismissed with prejudice where unlawful command influence from the Secretary of the Navy has undermined substantial post-trial rights of the Appellant.

II. The Appellant was interrogated by NCIS concerning his involvement in the alleged crimes, and terminated the interview by invoking his right to counsel. Appellant was thereafter held incommunicado and placed in solitary confinement where he was denied the ability to communicate with a lawyer or any other source of assistance. Appellant was held under these conditions for 7 days, whereupon NCIS re-approached Appellant and communicated with him regarding their ongoing investigation. In response, Appellant waived his previously invoked right to counsel and subsequently provided NCIS a sworn statement concerning the alleged crimes. Did the military judge err when he denied the defense motion to suppress the Appellant’s statement? See Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Brabant, 29 M.J. 259 (C.M.A. 1989).

I have a goal this term to preview every oral argument, and in the beginning I was doing well by writing my argument previews well in advance. But the past few weeks of my day job have kept me busy, and I’m now behind the appellate calendar. Unfortunately, this means that one of the more important, and potentially more significant, cases of the term is getting less attention than it deserves. Though, this is also because of the 14,000 word limit on an appellant’s brief at CAAF, the Appellant’s brief in United States v. Hutchins, No. 12-0408/MC, uses 13,996.

The case of Sergeant Hutchins, U.S. Marine Corps, returns to CAAF for oral argument tomorrow, Tuesday, November 13, 2012. Hutchins was tried in 2007 by a general court-martial composed of members with enlisted representation, and convicted contrary to his pleas of conspiracy, false official statement, unpremeditated murder, and larceny, in violation of Articles 81, 107, 118, and 121, UCMJ. This case is at CAAF for the second time. The first time, CAAF reversed in part a decision of the NMCCA that set-aside the findings for improper release of detailed defense counsel upon EAS and resulted in Hutchins’ release from confinement (he was serving an approved sentence that included confinement for 11 years). After CAAF’s ruling, Hutchins was returned to the brig, and the case was returned to the NMCCA for further consideration.

Hutchins’ conviction resulted from his participation a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the “Hamdania incident.” He is (I believe) both the only conspirator to be convicted of a violation of Article 118 and the only one who remains confined in relation to the crime. There’s plenty of controversy in this case, including this excerpt from a recent McClatchy article:

Whatever happens will reopen some uncomfortable questions about military justice, pitting against each other two men who are at opposite ends of the spectrum: one a political appointee atop the Department of the Navy, the other an incarcerated private.

“The fact that the highest military court has to reasonably ask itself if the secretary of the Navy has unlawfully manipulated the process means that, regardless of who is ultimately victorious, the integrity of the military justice system as a whole has already been fatally compromised,” S. Babu Kaza, Hutchins’ attorney, said by e-mail.

Navy Capt. Pamela Kunze, a spokeswoman for Mabus, said Tuesday that “the Department of the Navy does not comment on cases currently undergoing the appellate process.”

But a comment on a case undergoing the appellate process is precisely the issue. On remand, the NMCCA affirmed the findings and sentence. It considered four issues, including: “the Secretary of the Navy’s comments concerning the appellant’s case amounted to unlawful command influence (UCI) that undermined the appellant’s post-trial rights.” The CCA categorically rejected this assignment of error, finding first that the Secretary of the Navy can’t engage in actual unlawful command influence, and next that his actions could not reasonably be seen by the public as indicative of an unfair proceeding. Notably, the CCA found:

“[t]he Secretary of the Navy does not fall within the statutory ambit of Article 2, UCMJ, and the statutory interplay of [Articles 2 and 37] does not contemplate an actual UCI paradigm applicable to the secretariat or civilian leadership.”

United States v. Hutchins, No. 200800393, slip op. at 4 (N-M.Ct.Crim.App. March 20, 2012) (Hutchins III). CAAF then granted review of two issues:

I. Whether the findings and sentence must be dismissed with prejudice where unlawful command influence from the Secretary of the Navy has undermined substantial post-trial rights of the Appellant.
II. The Appellant was interrogated by NCIS concerning his involvement in the alleged crimes, and terminated the interview by invoking his right to counsel. Appellant was thereafter held incommunicado and placed in solitary confinement where he was denied the ability to communicate with a lawyer or any other source of assistance. Appellant was held under these conditions for 7 days, whereupon NCIS re-approached Appellant and communicated with him regarding their ongoing investigation. In response, Appellant waived his previously invoked right to counsel and subsequently provided NCIS a sworn statement concerning the alleged crimes. Did the military judge err when he denied the defense motion to suppress the Appellant’s statement? See Edwards v. Arizona, 451 U.S. 477 (1981), and United States v. Brabant, 29 M.J. 259 (C.M.A. 1989).

Besides being long, the Appellant’s brief is somewhat novel in that it includes a full-color reproduction of the front-page of the November 30, 2009, issue of the Marine Corps Times, and an excerpt from an appearance Secretary Mabus made on Comedy Central’s The Daily Show with Jon Stewart. But on the granted issues, the brief is blunt. First, it highlights that the Secretary is a general court-martial convening authority (undercutting the NMCCA’s categorical rejection of the possibility of UCI by the Secretary). Then, it notes that the judges of the Navy-Marine Corps Trial Judiciary work for the Judge Advocate General of the Navy, who in turn works for the Secretary (undercutting their independence). Next, it takes exception to the NMCCA’s findings on remand, including that court’s indication that the Appellant’s motions to attach UCI-related documents were granted, when they were actually denied (questioning the Court’s credibility). Finally (if there is to be a “finally” in a 13,996 word brief), it attacks the JAG for certifying the case after the NMCCA’s first opinion, because “Congress never intended JAG certification to simply be a guaranteed method for the Government to appeal to this Court.” Appellant’s Br. at 35. These factors are all juxtaposed as evidence of the Secretary’s actual influence on the post-trial proceedings in this case.

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